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Opinion Contributor

U.S. on the verge of water anarchy

The immediate issue is a dispute between Texas and Oklahoma, the author writes. | AP Photo

By JAMES M. OLIVER | 10/16/12 9:22 PM EDT

‘Water is for fighting,” Mark Twain famously said. Before November’s election, the Supreme Court could thrust Congress into the middle one of the biggest no-win fights yet in this age of gridlock — a simultaneous renegotiation of some of the nation’s most critical interstate water access agreements.

The immediate issue is a dispute between Texas (via the Tarrant Regional Water District, which serves Fort Worth and surrounding areas) and Oklahoma. Yet whether the Supreme Court accepts the case (Tarrant Regional Water District v. Herrmann) for review will determine if much of the country, from the Great Plains to the Pacific, has assured access to water in the decades ahead — or will numerous arrangements, in some cases dating back nearly a century, all become in essence dead letters.

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Eighteen of the country’s fastest-growing metropolitan areas over the next decade, as projected by a Wharton School study, depend on water allocations from interstate compacts.

Also at risk is the viability of Native American nations, as well as Western farmers and ranchers whose livelihoods and very existence depend on water from interstate compacts.

These include the farmers of Southern California’s Imperial and Coachella Valley, prime sources of winter fruits and vegetables for American consumers.

Add to the casualties the shale oil, coal and petroleum producers Americans are counting on to end our dependence on imported energy.

How did so much of the country’s future come to hinge on an obscure litigation between two states?

In September, ruling on the Tarrant case, the 10th Circuit reread language in the Red River Compact — an interstate water allocation agreement among Arkansas, Louisiana, Oklahoma and Texas — to mean that water sharing among the signatories was voluntary, not mandatory — raising the question, why did the states negotiate the complex agreement at all?

The compact is one of the nation’s 26 interstate water access pacts. It was passed into state law by the four negotiating legislatures and then passed by Congress into federal law. Despite all this, according to the court, if Oklahoma doesn’t want to allow Texas to use the water set aside for it in the legislation, it doesn’t have to.

After reading the case itself, there can be no question that water anarchy will not result as a consequence of this opinion. This is alarmist, misplaced commentary Oklahoma still has to meet the terms of the compact. However, Texas cannot dictate how and when it gets its water. Its an interesting opinion and there still may be water wars, but not as a result of this case.

As I understand the issue, Texas doesn't want to get the water from its own state because the water once it hits the Red river is too salty. But from my reading of the decision that is exactly what Texas must do. Oklahoma has to allow a certain flow rate into the Red river based on flow conditions in Oklahoma. Texas is coveting the water in Oklahoma and seeking to lay claims on the water there. But Texas claims on the water really apply to the water flowing through Texas. I suggest Texas start investing in desalination plants for Red river water instead of trying to steal water from Oklahoma.